The People, Respondent,v.Daniel Floyd, Appellant.

Brief

N.Y.January 29, 2013

APPELLATE ADVOCATES 2 RECTOR STREET - 10TH FLOOR, NEW YORK, NEW YORK 10006 PHONE: (212) 693-0085 FAX: (212) 693-0878 November 28, 2012 Hon. Andrew W. Klein Clerk of the Court Court of Appeals Court of Appeals Hall Eagle Street Albany, New York 12207 Re: People v. Daniel Floyd Submission Pursuant to Rule 500.11 Your Honor: As 19-year-old Daniel Floyd was beginning his first criminal trial, facing a life sentence for second-degree murder, counsel told the court that appellant’s mother was outside the courtroom and that she had a right to be present. The court said there was no space. The court did not consider allowing her to stand in the back of the courtroom or any other accommodation so that her teenage son would not have to face the jury without his mother’s emotional support. Excluding Ms. Floyd for the sole reason that there was limited seating – a rationale for courtroom closure that has been resoundingly rejected – deprived appellant of his right to a public trial. Presley v. Georgia, 130 S.Ct. 721 (2010) (per ATTORNEY-IN-CHARGE LYNN W. L. FAHEY ASSISTANT ATTORNEY-IN-CHARGE BARRY S. STENDIG SUPERVISING ATTORNEYS WINSTON MCINTOSH DAVID P. GREENBERG ERICA HORWITZ PAUL SKIP LAISURE LISA NAPOLI SENIOR ATTORNEY WILLIAM G. KASTIN STUDENT INTERN COORDINATOR STEVEN R. BERNHARD DENISE A. CORSÍ A. ALEXANDER DONN JOHN GEMMILL ALLEGRA GLASHAUSSER LEILA HULL KENDRA L. HUTCHINSON JONATHAN M. KRATTER WARREN S. LANDAU JOSHUA M. LEVINE DAVID G. LOWRY JESSICA M. MCNAMARA PATRICIA PAZNER ANNA PERVUKHIN DENICE POWELL CASEY ROSE SCOTT MARK W. VORKINK KATHLEEN E. WHOOLEY JENIN YOUNES DINA ZLOCZOWER OF COUNSEL ALEXIS A. ASCHER JANET CLAIRE LÊ ELLEN FRIED MELISSA S. HORLICK WILLIAM A. LOEB REYNA E. MARDER Hon. Andrew W. Klein November 28, 2012 Page 2 of 14 curium); People v. Martin, 16 N.Y.3d 607 (2011). See also, United States v. Gupta, Slip. Op. 09-4738-cr; 2012 WL 5440343 (2d Cir. Nov. 8, 2012); People v. Alvarez, Slip. Op. 168- 169; 2012 WL 5305796 (Oct. 30, 2012). Accord People v. Torres, Slip. Op. 235 SSM 39; 2012 WL 5844984 (Nov. 20, 2012). And, even though counsel alerted the court that appellant’s mother wished to attend, the court failed in its duty to consider “reasonable alternatives” to closure “even if neither party suggest[ed] any.” See Presley, 130 S.Ct. at 724-25; Martin, 16 N.Y.3d at 612; Waller v. Georgia, 467 U.S. 39 (1984). Instead, the court excluded Ms. Floyd at the moment that her teenage son was likely the most nervous, as he was first exposed to the jurors who would decide his fate. On appeal, the Appellate Division rejected as unpreserved appellant’s claim that his right to a public trial was violated. People v. Floyd, 95 A.D.3d 1138 (2d Dep’t 2012). In light of the recent decisions by this Court in Alvarez and George, the Appellate Division’s conclusion was wrong. In Alvarez and George, this Court held that defense counsel must “[b]ring[ ] a public trial violation to a judge’s attention in the first instance [to] ensure the timely opportunity to correct such errors” and preserve the issue for appeal. Slip Op. at 6. Because defense counsel in Alvarez objected to the courtroom closure as soon as he became aware of it, the public trial issue was preserved, and this Court reversed the conviction and remanded the case for a new trial. Id. at 7. In contrast, in George, the violation was unpreserved because defense counsel merely said “thank you” when the courtroom was closed. Id. Here, just as in Alvarez, defense counsel alerted the court to the constitutional requirement of a public trial, explaining that appellant’s mother was outside the courtroom and had an “absolute right to be present” as a “public spectator.” These remarks met the Alvarez preservation standard by “bringing the issue [of the right to a public trial] to the trial court’s attention.” Slip Op. at 6. The court, therefore, had an opportunity to correct its error by engaging in its independent duty to consider a reasonable alternative to excluding Ms. Floyd (or, if possible, making specific findings that the closure was necessary). It failed to do so. Because Ms. Floyd was improperly excluded and defense counsel alerted the court to the error, the courtroom closure in appellant’s case violated his Sixth Amendment right to a public trial and, just as in Alvarez, requires reversal. See U.S. Const., Amend. VI; N.Y. Civil Rights Law § 12; N.Y. Judiciary Law § 4. Hon. Andrew W. Klein November 28, 2012 Page 3 of 14 The Facts Before the start of the Wade hearing, defense counsel informed the court that appellant’s mother, Ms. Floyd, was present (H. 8). 1 At the close of the hearing, after denying suppression, the court briefly explained its voir dire procedure, stating that it would first excuse jurors with conflicts at the bench, and then seat potential jurors in panels of 18 (H. 56-57). Before leaving the courtroom, appellant was able to “visit” with his mother (H. 58). The next day, before the start of voir dire, defense counsel informed the court that appellant’s mother was “outside” and that he would like a minute to speak with her regarding the availability of space here during jury selection. Certainly, as a public spectator, she has an absolute right to be present. I’m going to discuss that with her when given the opportunity by the Court (V. 5). He also told the court that his investigator was in the courtroom and would enter “here and there, most likely not during the jury selection” (V. 4-5). The court replied: Obviously, given the nature of the charges, I’m going to get a larger than normal panel. I understand I’m going to be able to get about eighty potential jurors. That will certainly fill up this courtroom. Clearly, what we will do is, the very first thing, is excuse those potential jurors, who as I said yesterday, who have a scheduling conflict, a problem with English, a physical or medical condition that prevents them from sitting (V. 5). 1 Numbers preceded by H. refer to pages of the suppression hearing and V. refer to pages of the voir dire. Hon. Andrew W. Klein November 28, 2012 Page 4 of 14 It added that it would certainly anticipate as soon as those people are excused, if we didn’t already have room for the defendant’s family, then we certainly will by then. So you can just advise them what the procedure will be (V.5). Defense counsel replied, “[r]ight,” and the court continued, “[i]f there isn’t room when all eighty panel members are in here, as soon as they see people starting to walk out, then they know that there is room at that time” (V. 5-6). The court anticipated space would open up “within ten minutes of the beginning of the proceedings” (V. 6). Defense counsel replied, “quite frankly, the more important person to be in court is my investigator, and I’ve asked him to leave so that there is room to accommodate the jurors” (V. 6). He continued, saying that he would “explain this to Mrs. Floyd,” adding “I don’t want there to be any constitutional impediment, this is a public proceeding and no one is suggesting anything otherwise” (V. 6). After a recess, the court made introductory remarks to the prospective jurors and introduced appellant and counsel (V. 8-9). It asked if any jurors knew the parties, and explained the charges and the anticipated length of the trial (V. 9-12). It discussed scheduling conflicts off-the-record and explained the differing roles of judge, jury, and attorney (V. 13-16). After filling the jury box, it noted that the “[l]adies and gentlemen who are standing” should “find a seat” (V. 18). There is no indication in the record that defendant’s mother entered the courtroom at this point or at any specific later time. At trial, appellant was acquitted of intentional murder and intentional manslaughter, but convicted of felony murder, reckless manslaughter, and second- degree weapon possession arising out of a shooting death of a fellow gambler in an apartment building basement where a prosecution witness ran an illegal gambling operation. Hon. Andrew W. Klein November 28, 2012 Page 5 of 14 The Appeal Before the Appellate Division, appellant argued, inter alia, that the trial court’s exclusion of his mother from the courtroom during jury selection violated his Sixth Amendment right to a public trial, citing Presley v. Georgia, 130 S.Ct. 721 (2010), and People v. Martin, 16 N.Y.3d 607 (2011). In response, the People argued that it was a “proper exercise of the court’s discretion” to exclude appellant’s mother “for a brief period of time to make room for the prospective jurors”; that defense counsel “did not object to the court’s procedures at all,” but rather “waived” the issue; that appellant had not met his burden of “establish[ing] the actual extent of the alleged closure” or showing that his mother was “actually excluded”; and that the closure was trivial (People’s Brief at 15-16, 18, 22, 30-31). The Appellate Division rejected appellant’s public trial argument, saying, “the record reflects that the defendant’s claim that his right to a public trial was violated is unpreserved for appellate review (see People v Borukhova, 89 AD3d 194, 225 [2011]; People v George, 79 AD3d 1148 [2010], lv granted 16 NY3d 895 [2011]; People v Alvarez, 76 AD3d 1098 [2010], lv granted 16 NY3d 827 [2011]).” Floyd, 95 A.D.3d at 1138-39. On August 16, 2012, the Honorable Victoria A. Graffeo granted appellant leave to appeal. People v. Floyd, 19 N.Y.3d 996 (2012). ARGUMENT IN SUPPORT OF REVERSAL Based solely on limited seating, the trial court excluded 19-year-old Daniel Floyd’s mother from the courtroom before the start of jury selection, failing to consider any reasonable alternatives to closure that would have accommodated Ms. Floyd, whom the court was aware wished to attend. Accordingly, appellant’s Sixth Amendment right to a public trial was violated. Presley v. George, 130 S.Ct. 721 (2010) (per curiam); People v. Alvarez, Slip. Op. 168-169; 2012 WL 5305796 (Oct. 30, 2012); People v. Martin, 16 N.Y.3d 607 (2011); U.S. Const., Amends. VI, XIV; N.Y. Civil Rights Law §12; N.Y. Judiciary Law §4. Defense counsel preserved this issue by alerting the court that appellant’s mother had an “absolute right to be present” as a “public spectator” (V. 5-6). Accordingly, as in Alvarez, counsel brought the public trial violation to the “judge’s Hon. Andrew W. Klein November 28, 2012 Page 6 of 14 attention” and the court had the “timely opportunity to correct” its error. Alvarez, Slip Op. at 6. Counsel’s remarks also triggered the court’s independent obligation to examine alternatives to courtroom closure even though counsel did not suggest any. Presley, 130 S.Ct. at 724; Martin, 16 N.Y.3d at 612. This Court should, therefore, find that the violation of appellant’s right to a public trial was preserved and that reversal is required. A. Appellant Was Denied His Right to A Public Trial The right to a public trial “has long been regarded as a fundamental privilege of the defendant in a criminal prosecution [that] extends to [ ] voir dire.” Alvarez, Slip Op. at 4 (citing Martin, 16 N.Y.3d at 611); see also Presley, 130 S.Ct. 175 (exclusion of single observer from voir dire violated right to public trial); People v. Nazario, 4 N.Y.3d 70, 71 (2005) (“It is well established that a criminal trial must normally be open to the public”). A public trial safeguards a defendant’s right to a fair trial, restrains any possible abuses of judicial power, and instills a sense of public trust in the judicial process. People v. Clemons, 78 N.Y.2d 48, 51 (1991); People v. Hinton, 31 N.Y.2d 71, 73 (1972). Public scrutiny during voir dire assures the selection of a fair and impartial jury, serving as a check on the conduct of the panel, the court, and the advocates, and on the composition of the panel, which must fairly represent the community. Because “the concept of a secret trial is anathema to the social and political philosophy which motivates our society,” People v. Jones, 47 N.Y.2d 409, 413 (1979), a court’s discretion to limit an accused’s right to a public trial must be “sparingly exercised,” “only when unusual circumstances necessitate it.” People v. Jones, 96 N.Y.2d 213, 216 (2001) (quoting Hinton, 31 N.Y.2d at 76). Accordingly, courts “are obligated to take every reasonable measure to accommodate public attendance at criminal trials,” Presley, 130 S.Ct. at 725, so that “[c]losure remains only an exception to the mandatory postulate of open trials.” People v. Kin Kan, 78 N.Y.2d 54, 57 (1991). To ensure that the fundamental right to a public trial is not violated, closure of the courtroom must meet a four-part test: [T]he party seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the Hon. Andrew W. Klein November 28, 2012 Page 7 of 14 proceeding, and it must make findings adequate to support the closure. Waller v. Georgia, 467 U.S. 39, 48 (1984) (emphasis added). The court “must” analyze the Waller factors and “make specific findings” before closing the courtroom. United States v. Gupta, Slip Op. No. 09-4738-cr at 7; 2012 WL 5440343 at *3 (2d Cir. Nov. 8, 2012); see also Alvarez, Slip Op. at 4; Martin, 16 N.Y.3d at 611-12. If the court “fails to adhere to this procedure, any intentional closure is unjustified and will, in all but the rarest of cases, require reversal.” Gupta, Slip Op. at *3, 6. Overcrowding is not an “overriding interest” justifying courtroom closure. Presley, 130 S.Ct. at 724-25; Martin, 16 N.Y.3d at 612; Gupta, Slip Op. No. 09-4738-cr. See also Alvarez, Slip Op. No. 168-169. Specifically, “judicial efficiency and the conservation of judicial resources [do not] trump” the right to have a family member present during voir dire. Martin, 16 N.Y.3d at 612. Nor does the power to “‘monitor admittance to the courtroom . . . , in order to prevent overcrowding [or] to accommodate limited seating capacity’ . . . extend to excluding specific members of the public.” Id. at 612 (quoting People v. Colon, 71 N.Y.2d 410, 416 [1988]). Moreover, a heightened “overriding interest” standard is applied when the court excludes family members. See, e.g., Nazario, 4 N.Y.3d at 71 (even when closure of the courtroom to members of the public is warranted to protect an “overriding interest,” the court “should ordinarily make an exception for members of the defendant’s family”); People v. Nieves, 90 N.Y.2d 426, 430 (1997) (when “the trial court is aware that the defendant’s relatives have been attending the proceedings or that the defendant would like to have certain family members present, exclusion of those individuals must be necessary to protect the interest advanced by the People in support of closure”); People v. Gutierez, 86 N.Y.2d 817, 818 (1995) (“excluding defendant’s close family members was broader than constitutionally tolerable and, thus, constituted a violation of defendant’s overriding right to a public trial”); Kin Kan, 78 N.Y.2d at 58 (“[a]ll four of the Waller prerequisites are deficient with respect to the exclusion of Kan’s family”); see In re Oliver, 333 U.S. 257, 271-72 (1948) (“[A]n accused is at the very least entitled to have his friends, relatives and counsel present”). Even if there is an overwhelming interest allowing a courtroom closure, the court still must find that the other three Waller factors are met: that the closure is not broader than necessary, that there are no alternatives, and that the facts sufficiently Hon. Andrew W. Klein November 28, 2012 Page 8 of 14 support the conclusion that Waller is satisfied. Specifically, for factor three, the trial court must sua sponte consider “reasonable alternatives” to closure “even if neither party suggest[ed] any.” Martin, 16 N.Y.3d at 612; see also Presley, 130 S.Ct. at 724; Jones, 47 N.Y.2d at 414-15 (“no closing can be tolerated that is not preceded by an inquiry careful enough to assure the court that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons”). In other words, while this Court has held that counsel must make the court aware of a public trial issue, once it is so alerted, the “obligation rests with the court to consider alternatives.” Alvarez, Slip Op. at 5. Here, the court knew that Ms. Floyd was present during the Wade hearing the day before and had seemed to recognize her importance to appellant, allowing him to “visit” with her after suppression was denied (H. 58). Nonetheless, when counsel informed the court just before the start of voir dire that Ms. Floyd again wished to be in the courtroom, the court said that there would not be room because there was a “larger than normal panel” of jurors (V. 5). Just as in Presley, Martin, and Alvarez, the court did not consider, and clearly failed to address, the Waller factors when it decided there would be no room in the courtroom for appellant’s mother at the beginning of voir dire based solely on space constraints. Limited space is not an “overriding interest” justifying a courtroom closure, and the court asserted no other reason that appellant’s mother could not be present. See Presley, 130 S.Ct. at 724-25 (improper exclusion of “lone spectator” for space constraints); Alvarez, Slip Op. 168-169 at 2, 7 (rejecting court’s procedure of excluding family until some jury members were excused); Martin, 16 N.Y.3d at 611 (improper exclusion of the defendant’s father due to limited space and a concern that he might influence the jurors). The People’s argument below that the closure of the courtroom for a “brief period of time to make room for the prospective jurors” was “a proper exercise of [ ] discretion” (People’s Brief at 22) completely ignored this legal framework. Instead, because the court failed to consider the Waller factors, closure was “unjustified [and] the presumptive result [ ] is vacatur of the conviction.” Gupta, Slip Op. No. 09-04736-cr at 7; 2012 WL 5440343 at *4. As in Presley, Alvarez, and Martin, the court here failed in its duty to consider reasonable alternatives to closure. See Presley, 130 S.Ct. at 725; Alvarez, Slip Op. at 5-6 (“It is apparent that neither trial judge . . . considered any alternatives”); Martin, 16 N.Y.3d at 612. There was nothing in the record suggesting that the court could not Hon. Andrew W. Klein November 28, 2012 Page 9 of 14 have accommodated appellant’s mother. It could have, for example, “[c]alled fewer jurors at the start . . . ; [r]equired either . . . member[s] of the venire or [the spectators] to stand until a seat became vacant; [or m]oved the proceedings to a larger courtroom.” Gibbons v. Savage, 555 F.3d 112, 117 (2d Cir. 2009); see Martin, 16 N.Y.3d at 612 (suggesting “reserving one or more rows for the public [or] dividing the jury venire panel to reduce courtroom congestion”) (quoting Presley, 130 S.Ct. at 725). Indeed, here, the court apparently did have some jurors stand until the court had seated the first panel in the jury box, at which point it told the “[l]adies and gentlemen who are standing” to find a seat (V. 18). Surely, it would not have been difficult to allow Ms. Floyd to stand as well. In sum, the court failed to consider the Waller factors. The overcrowding justification it provided has been expressly and repeatedly held insufficient to justify closure. And, it failed to consider alternatives so as to accommodate Ms. Floyd. Accordingly, appellant’s right to a public trial was violated. B. The Public Trial Error was Preserved Because Defense Counsel Alerted the Court that Appellant’s Mother Had an “Absolute Right to be Present” as a “Public Spectator” Defense counsel preserved the public trial violation by informing the court that appellant’s mother had an “absolute right to be present” as a “public spectator.” And, he did not waive the issue by failing to protest further once the court explained its intent to exclude her until space became available. A question of law is presented for appellate review when a party’s protest to a court’s ruling is both timely and specific. See generally, C.P.L. § 470.05 (2); People v. Gray, 86 N.Y.2d 10, 19-21 (1995). In Alvarez and George, this Court held that counsel must preserve public trial violations by “bringing the issue to the trial court’s attention.” Slip Op. at 6. Indeed, the Court has long found public trial violations preserved when defense counsel “unquestionably apprised” the court that the defendant “wish[ed] to have” family members “attend his trial.” People v. Garcia, 95 N.Y.2d 946 (2000) (citing Nieves, 90 N.Y.2d at 431, n. *). In George, there was no question that defense counsel had not preserved the public trial violation because counsel did not say anything to alert the court that spectators had a right to be present. Instead, when the court closed the courtroom sua sponte, defense counsel simply “thanked the judge” and the “parties continued with the proceedings.” Slip Op. at 3. In contrast, in Alvarez, defense counsel fully preserved the Hon. Andrew W. Klein November 28, 2012 Page 10 of 14 public trial violation by moving for a mistrial as soon as defense counsel realized the courtroom had been closed. Id. at 2-3. Here, as in Alvarez and Garcia, and unlike George, defense counsel brought the public trial issue to the court’s attention as voir dire began and “unquestionably apprised” the court that appellant’s mother wished to be present. Garcia, 95 N.Y.2d at 947. Counsel made it clear that he was protesting the deprivation of appellant’s right to a public trial by alerting the court that appellant’s mother “ha[d] an absolute right to be present” as a “public spectator” (V. 5). These remarks were sufficiently specific to inform the trial court of the public trial issue and give it an opportunity to avoid the error. Moreover, defense counsel’s objection triggered the court’s independent duty to consider alternatives to closure. See Presley, 130 S.Ct. at 724. Instead of considering how Ms. Floyd could be included in the proceedings, however, the court explained to defense counsel that there would not be room for spectators and told counsel to “advise” appellant’s mother of its ruling (V. 5). Once the court had made up its mind to close the courtroom, counsel was not obligated to continue protesting. See People v. Mezon, 80 N.Y.2d 155 (1992). The “law does not require litigants to make repeated pointless protests after the court has made its position clear,” therefore, once defense counsel “made it clear that [he] did not voluntarily intend to forego” the right to a public trial, no “further protest was required.” See id. at 160-61. Holding otherwise would be at odds with the requirement that defense counsel merely bring the issue to the trial court’s attention. See Alvarez, Slip Op. at 6; Gray, 86 N.Y.2d at 20-21. This Court has declined to “impose a preservation rule so extreme that defendant, to succeed, would have to antagonize the court or test its patience,” noting that “[s]uch a rule would do nothing to advance the objectives of our preservation doctrine.” People v. Resek, 3 N.Y.3d 385, 388 n. 1 (2004). Defense counsel’s objection here was clear enough to alert the court to its error and provide an opportunity to correct it; nothing more was required. Nonetheless, the Appellate Division rejected appellant’s Sixth Amendment claim as “unpreserved for appellate review,” Floyd, 95 A.D.3d at 1139, citing People v. Borukhova, in which, unlike here, counsel said nothing when the courtroom was closed; George, in which counsel said only “thank you”; and Alvarez, which this Court subsequently overturned because defense counsel, in fact, did object. Borukhova, 89 Hon. Andrew W. Klein November 28, 2012 Page 11 of 14 A.D.3d 194, 225 (2d Dep’t 2011) (“at no point during voir dire did the defendant raise any objection”); Alvarez, Slip Op. 2-4. Just as in Alvarez, because defense counsel alerted the court in a timely and specific way that there was a right to a public trial and appellant’s mother desired to attend, the Appellate Division’s decision rejecting his Sixth Amendment claim as unpreserved was incorrect. Similarly, counsel did not waive appellant’s Sixth Amendment rights with his remarks subsequent to the court’s ruling. While preservation and waiver are often “inextricably intertwined,” they are separate concepts. People v. Ahmed, 66 N.Y.2d 307 (1987) (quotations omitted). Waiver is the “intentional abandonment of a known right” and must be “voluntary,” “knowing and intelligent.” People v. Seaberg, 74 N.Y.2d 1, 11 (1989); People v. Prescott, 66 N.Y.2d 216, 219 n. 1 (1985). There is a presumption against the waiver of constitutional rights, and it is the “People’s burden to overcome that presumption.” See Johnson v. Zerbst, 304 U.S. 458, 464 (1938); People v. Howard, 50 N.Y.2d 583, 585 (1980). Here, counsel initially broached the public trial issue by informing the court that Ms. Floyd was waiting outside and had a right to attend. The court replied by suggesting counsel “advise” her that “as soon as [some] people are excused” there would be room for her and any other family members (V. 5). Counsel replied, “[r]ight,” indicating that he understood the court’s ruling, a conclusion supported by his request for a recess, as the court had suggested, to “explain” the decision to Ms. Floyd (V. 5-6). Counsel then added, “I don’t want there to be any constitutional impediment, this is a public proceeding and no one is suggesting anything otherwise” (V. 6). Far from a knowing and intelligent waiver of appellant’s constitutional rights, this ambiguous statement was most likely merely intended as a reminder that, although counsel would convey the court’s ruling, the proceeding should be open to the public. Unlike cases in which this Court has found constitutional rights waived, counsel did not explicitly request, consent, or acquiesce to the court’s ruling in closing the courtroom to Ms. Floyd. Cf. People v. Gajadhar, 9 N.Y.3d 438, 441 (2007) (counsel executed written waiver of defendant’s right to a 12-person jury); People v. Allen, 86 N.Y.2d 599 (1995) (defendant “expressly waived” double jeopardy rights). Instead, counsel’s response to the court simply acknowledged the court’s ruling and reminded the court of its duty to keep the trial public. Given the presumption against waiver, counsel’s equivocal remarks cannot be considered an intentional abandonment of Hon. Andrew W. Klein November 28, 2012 Page 12 of 14 appellant’s Sixth Amendment rights. See Zerbst, 304 U.S. at 464 (court will not “presume acquiescence in the loss of fundamental rights”); see also, People v. Johnson, 93 N.Y.2d 254, 259 (1999) (counsel did not acquiesce to procedure without a hearing when he failed to object to the procedure itself but responded on the merits); People v. Rosen, 81 N.Y.2d 237, 245 (1993) (pro se defendant did not acquiesce to his exclusion from side bar conferences by acknowledging the court’s previous ruling and requesting the conferences be recorded). This Court, therefore, should reject the waiver argument the People made below (People’s Brief at 15-16). Moreover, the court had a sua sponte duty to consider alternatives to closure once it was notified by defense counsel that appellant’s mother wished to attend the proceedings. Martin, 16 N.Y.3d at 612; Presley, 130 S.Ct. at 724. In Alvarez, this Court reaffirmed that this “obligation rests with the court.” Slip Op. at 5. A finding in this case that counsel implicitly waived this issue with his remarks subsequent to the court’s ruling would improperly remove this obligation from the court and place the burden on defense counsel. As in Martin, the court’s failure to consider alternatives to closure even though counsel did not suggest any violated appellant’s right to a public trial. Martin, 16 N.Y.3d at 612. Nothing counsel said here indicated that he was waiving the court’s obligation. Nor were counsel’s comments about his interest in having the investigator present a waiver of appellant’s right to have his mother present. As counsel clearly explained to the court, the investigator would come and go during the trial but “most likely not during jury selection” (V. 5). This made sense because the presence of the investigator, who would presumably be looking into the factual claims of the trial witnesses, would obviously be most useful during the trial testimony. In contrast, Ms. Floyd was there to provide emotional and moral support for her teenage son, something he needed from the beginning of his murder trial. See Nazario, 4 N.Y.3d at 72 (noting the “moral and emotional support” provided by family members in the courtroom). Counsel’s agreement to ask his investigator to wait outside, therefore, did not waive his objection to the court’s exclusion of appellant’s mother.2 2 Although this Court held in George that preservation of a public trial right is required, the United States Supreme Court has not so ruled. On the contrary, the Supreme Court has made clear that the public has a right to be present at a trial regardless of whether a party has protested a closure. Presley, 130 S.Ct. at 724-25 (citing Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 503-04, 513 [1984]). Additionally, Presley’s requirement that the court consider reasonable alternatives to closure on its own suggests that violations of the public trial right do not require preservation. Presley, 130 Hon. Andrew W. Klein November 28, 2012 Page 13 of 14 C. The Record Was Sufficient to Establish the Error Contrary to the People’s position below, the public trial error cannot be excused as trivial or insufficiently supported by the record (People’s Brief at 30). This Court has declined to adopt a triviality exception, explicitly rejecting the argument in Martin and implicitly rejecting it in George. Martin, 16 N.Y.3d at 613. The Court should not change course here. In addition, although there is no record of precisely when appellant’s mother was allowed to enter the courtroom, the record clearly establishes that she was excluded. Defense counsel specifically told the court immediately before voir dire began that appellant’s mother was waiting to enter the courtroom, saying “the defendant’s mother is outside. I’d like a minute to speak with her regarding the availability of space here during jury selection” (V. 5). And, as the People conceded below, the court requested that she “remain outside temporarily” (People’s Brief at 22). This record sufficiently established that appellant’s mother was excluded. Because this Court has declined to adopt a triviality exception, nothing more was required.3 Because there is a “practical impossibility” of a defendant proving prejudice from a public trial violation, harmless error analysis does not apply. E.g., Martin, 16 S.Ct. at 724. Indeed, in the recent Second Circuit decision in Gupta, even though no contemporaneous objection was made to the courtroom closure and the issue was not raised until the case was already on appeal, the court reversed the conviction as violating the right to a public trial. Gupta, Slip Op. at 11-12; 2012 WL 5440343 at *6. Therefore, even if this Court finds the public trial error unpreserved here, we respectively urge it to find that appellant’s right to a public trial was violated and that reversal is required. 3 In asserting triviality, the People relied mainly on the Second Circuit Court of Appeals in Gibbons, 555 F.3d at 120, which predated Presley by 20 years and was effectively overruled in Gupta. Gupta, Slip Op. at 8-9; 2012 WL 5440343 at *4-5 (Court had “repeatedly emphasized [ ] the [triviality] doctrine’s narrow application”; the “presumptive result” when a courtroom is closed without adhering to the Waller factors is to reverse the conviction). As the Second Circuit explained, although most voir dire proceedings are “uncontroversial,” the right to a public trial is not “implicated solely in discordant situations.” Gupta, Slip Op. at 10; 2012 WL 5440343 at *5. Instead, “it is the openness of the proceeding itself, regardless of what actually transpires, that imparts the appearance of fairness so essential to public confidence in the system as a whole.” Id. at 10-11 (emphasis added; internal citations omitted). Hon. Andrew W. Klein November 28, 2012 Page 14 of 14 N.Y.3d at 613 (citing “the per se rule of reversal irrespective of prejudice”); Jones, 47 N.Y.2d at 417 (unprovable prejudice may include a spectator realizing that he possesses material information, which he would volunteer to the parties, or the presence of the public deterring a witness or prospective juror from perjury). * * * In sum, because the court excluded appellant’s mother from the courtroom at the start of voir dire for the completely unjustified reason of space constraints and failed to consider reasonable alternatives to the closure, appellant’s Sixth Amendment right to a public trial was violated. Because defense counsel’s comments that appellant’s mother had a right to be present were sufficient to alert the trial court to its error, the claim was adequately preserved. Therefore, appellant’s conviction should be reversed and a new trial ordered. This letter constitutes appellant’s written argument on the merits in support of reversal. Enclosed are copies of the transcripts, the Appellate Division briefs, the Appellate Division’s order affirming appellant’s conviction, the order granting leave to appeal to this Court, and companion submissions in digital format on CD-ROM. Respectfully yours, LYNN W. L. FAHEY Attorney for the Defendant-Appellant 2 Rector Street, 10th Floor New York, NY 10006 (212) 693-0085 By: Allegra Glashausser Of Counsel cc: Hon. Charles J. Hynes District Attorney, Kings County Renaissance Plaza 350 Jay Street Brooklyn, New York 11201-2908 Attn: A.D.A. Rhea A. Grob